OPINION (2)

Whitelaw v Acheson

[1] This Opinion is to be read along with that of 29 February 2012 (the “Opinion”) where we set out our conclusion that it would be reasonable to vary the title conditions to allow a change of use. We said we were not persuaded that they should be varied to permit building between the two houses but saw no reason why all building to the rear of 201 should be restricted. We recognised that any extension of the existing buildings would be likely to lead to some increase in the numbers using the building but said that we did not think that would have a significant impact on 199: para [72]. We decided to continue for further procedure in relation to the issues of signage and any additional building: [74]

[2] Following issue of that decision the applicant initially came back with a plan for a different extension. In a Note of 30 May 2012 we required the applicant to provide further detail. We expressed some doubt about building to the west of the garage.

[3] The applicant eventually lodged revised proposals with virtually all the proposed extension being to the rear of the existing building. The proposal was to extend the existing building by creating a new entrance and reception area, two new rooms, together with a new small toilet and a small windowless room for “staff facilities”. We heard parties on 31 August 2012 in relation to the revised proposals. We did not consider it necessary or appropriate to hear further evidence from the applicant. Our intention, in this case, was to consider revised proposals in light of the views we had already formed rather than to have a new hearing. We made it clear that the respondents were entitled to challenge the new proposals and invited Mr Thomson to lead evidence if so advised. In the event it was agreed that the matter could be dealt with on the basis of submissions.

[4] Having heard submissions and considered the plans in light of the views previously expressed, we are satisfied that it is reasonable to vary the building condition to the extent of allowing certain of the building works shown in the applicant’s production 31.1 , namely the architect’s drawing 3/03 of July 2012. We are not persuaded of the need for the new room to the south east described as “councillors room”. Although we are satisfied that this presents no difficulty in terms of physical and visual impact, it does have a bearing on the potential overall extent of use of the subjects. Our concern is with the question of balancing the interests of the parties – under implicit reference to factors (b) and (c) of sec 100. Extra rooms potentially add to the potential impact of the change of use by increasing the number of people who could use the premises. It is irrelevant that the present applicant conceives of the additional room in terms of an additional facility for persons who might be expected to be on the premises in any event. Other proprietors might use the rooms in a different way. Extra space increases capacity.

[5] In our previous decision, when considering the likely impact of change of use, we had regard to the impact of the applicant’s proposals as a whole. Our reason for rejecting the building between the two properties was based principally on the visual and physical impact of an extension between the two houses. However, we noted that any extension would be likely to increase the level of use and that a line would have to be drawn. In the present case, the potential adverse effect of the change relates to the potential disturbance caused by the “footfall”, in other words, the numbers of people coming and going through the grounds of 201. Except in relation to possible noise, what happens inside the building is unlikely to have any impact on the neighbouring property. There is no reason to think that permitting commercial use would lead to more risk of noise than domestic use. We recognise, of course, that the drawing of a line in this context is not a scientific exercise. It is simply the result of an assessment of reasonableness and the need to express a conclusion as to the balancing point.

[6] At the recent hearing, Mr Thomson presented a powerful submission stressing the need to consider the reasonableness of varying the conditions, not against the background of the applicant’s proposals but in light of the range of use which might be made of the building by a subsequent proprietor. We entirely accept this: see para [61] of the Opinion. We think there is force in his comment that the applicant appeared to be placing much reliance on the reasonableness of her own proposals. Our concern is, indeed, with a wider picture.

[7] We consider that the extra impact of creation of a new reception area and additional room, is within the scope of the reasonable change of use discussed in our Opinion. Additional footfall caused by it would not, in our assessment, tip the balance against the applicant. We have not thought it necessary to give any great weight to the fact that the new access and room is said to be intended primarily to benefit people with physical disabilities. But, we consider that this is a material factor which does tend to support the variation. We are satisfied that some forms of counselling can serve a valuable role in relation to mental welfare. We have no doubt that attractive surroundings play a part in that. Any steps taken to improve the experience of people with physical handicaps are to be encouraged. In the context of sec 100 we are to assess the reasonableness of variation. This does not require us to be satisfied that any aspect of proposed change is in some way “necessary”. Accordingly, we do not require to embark on examination of the various statutory provisions relating to this issue. Plainly single level access and sharing of the reception area with other people will be likely to improve the experience of the disabled and that is a positive factor for the applicant.

[8] It was suggested that the applicant had the option of finding another suitable house with good access and without title conditions. Such a suggestion might be made in every disputed title conditions case although in some it might be more obviously unrealistic than in others. In the present case, we do not consider the possibility of such search being made to be a material factor in terms of sec 100(j) although positive evidence of ready availability of other suitable property might have been a factor to take into account under that provision.

[9] Mr Thomson suggested that our approach – in para [65] of the Opinion – to the implications of sec 8 the Title Conditions (Scotland) Act 2003 was not entirely satisfactory. He stressed the dangers of the thin end of the wedge. He pointed to the danger that the Tribunal might carry out a careful assessment balancing the factors and allow a specific change. However, if another court was assessing an alleged breach of title conditions it would have regard only to the condition as varied. It would have to have regard to the materiality of the breach only by comparison with what would be allowed by the varied conditions. This plainly presents a difficulty in a situation where the Tribunal has had to “draw a line” in its attempts to balance competing interests to determine what is reasonable for the purposes of sec 98 of the Act.

[10] His substantive argument can, we think, be summarised as follows. If a tribunal has reached the conclusion that removal of existing conditions would only be reasonable if certain conditions were put in their place, it is necessary to be satisfied that these conditions would be enforceable. If there was a perceptible risk that they might come to be unenforceable because another court or tribunal might take the view that the respondents had not shown sufficient interest to enforce within the meaning of sec 8(3)(a), it would follow that the conditions which had been seen to be necessary to justify removal of the existing title conditions were ineffective. It could not be right to rely on ineffective conditions. Accordingly, variation of the existing conditions could not be justified.

[11] However, at least in the circumstances of the present case, the argument goes to the issue of change of use rather than change of building. We expressed our conclusion on the former in our Opinion. We have no justification for revisiting it. At this stage the question is whether any increase in footfall in the burdened subjects consequent upon the extension now proposed goes beyond what was contemplated in that Opinion or goes beyond it to such an extent as to require revision of our view as to the likely impact of change of use. We are satisfied that the likely usage remains broadly as we previously contemplated. Accordingly, while questions arising from the interaction of sec 8 with our task of assessment of reasonableness may remain for further exploration in a suitable case, we think it unnecessary to attempt a further analysis for the purposes of the present decision.

[12] It may be added that when considering change of use, the interest of the benefited proprietors is plainly a vital aspect of any assessment under sec 100(b) – although it may not be expressed in that way. Plainly any attempt to enforce title conditions requires the benefited proprietor to show an interest to prevent the specific breach in question. That interest is now explicitly based on there being some detrimental effect on the value or enjoyment of the benefited property. The degree of detrimental effect will have to be assessed in light of the circumstances of each case to see if it can properly be said to be “material”. We tend to the view that in the present context it can be inferred that Parliament accepted that term as pointing to a contrast with terms such as “immaterial, insignificant, trivial”. We recognise that if it was to require establishment of some serious impact, this could, in some cases, add significantly to the complexity of the balancing exercise required in exercise of our jurisdiction under sec 98.

[13] We also add that if a Court takes the view that a particular breach of the varied condition has no material bearing on the value or enjoyment of the respondents’ property, this does not mean that the condition has become unenforceable. It would remain effective to prevent any breach which did have a material impact. In this connection, we must make brief reference to Kettlewell v Turning Point Scotland 2011 SLT (Sh Ct) 143. That case was not cited to us and it is not necessary for us to do more than express a word of caution about one observation. The case concerned an interdict to stop breach of a title condition restricting use of subjects to a residence for one family. It was proposed to use it as a residence for four unrelated adults with learning disabilities and to provide facilities for their various carers. The observation was to the effect that once the title condition has been “departed from” the property could be utilised by subsequent tenants or proprietors other than as a property for the use of one family only. In substance and in context this might have been an appropriate comment point but it may be misleading to characterise the Sheriff’s function as leading to the condition being departed from. The question was not whether the condition was to be varied or abandoned but whether it could be enforced in relation to the specific breach contemplated. If there was an attempt to use it for other purposes this would be a breach of the obligation to use it as a family home. The impact would have to be assessed afresh. This seems to follow from the fact that sec 8 is concerned with interest to enforce a breach. It is only this Tribunal which has jurisdiction to allow conditions to be departed from in the sense of being varied. It may be noted that, in the related context of acquiescence, the Act provides expressly that the burden is only extinguished “to the extent of the breach”: sec 16(1).

[14] Although we recognise the respondents’ inevitable disappointment at the conclusions we expressed in the main Opinion, we think it unfortunate that they now characterise the applicant’s conduct in hostile terms. All property owners are entitled to seek to make best use of their property for their own purposes subject to restrictions imposed by the law. The applicant bought the house knowing of the title conditions but also knowing that she had a legal right to ask the Tribunal to change them. As the respondents have pointed out, she viewed matters solely in terms of the reasonableness of her own intentions. When she became aware that change was resisted, she tried to discuss matters with the respondents but they declined to do so because they were fundamentally opposed to any change of use. But without guidance from the respondents as to what they would prefer if there was to be a change of use, the applicant has relied on expert advisers and exercised her right to ask the Tribunal to exercise its discretion in her favour. It may be said that her proposals in relation to signage were inconsistent with the views we had expressed but it is to be borne in mind that prior to issue of our Opinion she had not expected challenge on this. The respondents had not raised the point. We do not think it was unreasonable for her to test the matter. We do not find her conduct to be indicative of any impropriety of thought or attitude. In any event, we have tried to determine matters on the assumption that the subjects will eventually come into other hands. The reasonableness or otherwise of the present applicant would not be a sound guide.

[15] As it was not suggested that anything turned on the precise design of the building, we follow our usual practice of defining the variation of the building restriction in terms of the plan footprint, limited to a single storey structure. We recognise that this will not restrict the external style or internal layout but we do not see these as of any material significance in the circumstances of this case. A single story extension of the size we have accepted, relative to the size of the existing building, is typical of many domestic extensions. Accordingly, we do not propose a restriction based on the specific proposals as to style of external finish. We heard no submissions from the respondents directed specifically at that. They will have an opportunity to make any representations they consider appropriate in the planning process. It is plain that their substantive concern has been with the change of use and the impact of people coming and going.

[16] We have to give consideration to the planning position in terms of sec 100(g). There is no consent to the present building proposal. However, the current proposal is physically less visually intrusive than the one to which consent was given. We accept that there is a possibility that the planning authority will not permit the development now proposed but, in all the circumstances, we do not consider this possibility of any materiality in relation to the decision we now have to make. We think a grant of planning permission likely but in any event, procedures before the Tribunal and planning procedures are distinct and one inevitably comes before the other. It is not a rule that planning must come first. It is hardly novel to find development permitted by title conditions but not permitted by the planning regime.

[17] We have varied the restriction on use in accordance with the views expressed in the Opinion of 29 February and imposed a condition relating to signage on the lines discussed in our Opinion of 30 May 2012.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 28 September 2012

Neil M Tainsh – Clerk to the Tribunal